Fair Work Ombudsman v Love

Case [2011] FMCA 671

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v LOVE and ANOR [2011] FMCA 671
INDUSTRIAL LAW – Fair Work – proceedings commenced under s.718 of the Workplace Relations Act 1966 for the imposition of penalties for the breach of s.346ZD for the failure to make back-payments within a specified period after notification of failure of AWAs to meet the Fairness Test – penalty orders made.
Fair Work Act 2009 (Cth), ss.539, 681, 687, 701
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ss.11, 13
Workplace Relations Act 1966 (Cth), ss.346, 718, 719, 728
Workplace Relations Amendment (Work Choices) Act 2005
Workplace Relations Amendment (A Stronger Safety Net) Act 2007
Armstrong v Bigeni Contracting Pty Ltd [2008] FMCA 485
Australian and Consumer Affairs Commission v ABB Transmission and Distribution Ltd [2001] FCA 383
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2000] FCA 1908
Brobbel v S & C Mack Pty Ltd [2008] FMCA 1355
CPSU v Telstra Corporation Ltd (2001) 108 IR 228
Dennington v Pee Cee Pty Ltd [2008] FMCA 79
Fair Work Ombudsman v Essendene Security Pty Ltd & Anor [2010] FMCA 384
Fair Work Ombudsman v Security Protection Services Pty Ltd & Ors [2010] FMCA 252
Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 1847
Flattery v Italian Eatery t/as Zeffirelli’s Pizza Restaurant [2007] FMCA 9
Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Iannella v French (1968) 119 CLR 84
Jones v RWH Parcel Delivery Pty Ltd [2008] FMCA 1153
Kelly v Fitzpatrick (2007)166 IR14
Klousia v KTM Investments Pty Ltd & Anor [2009] FMCA 208
Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurants and Bars [2007] FMCA 7
McIlwain v Ramsey Food Packaging Pty Ltd (No.4) [2006] FCA 1302
McIver v Healey [2008] FCA 425
Ostrowski v Palmer [2004] HCA 30
Printing and Kindred Industries Union & Ors v Vista Paper Products Pty Ltd (1994) 127 ALR 673
Ponzoi v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Securit-E Holdings Pty Ltd & Ors [2009] FMCA 700
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Torpia v Empire Printing (Australia) Pty Ltd [2009] FMCA 853
Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1991) 37 IR 313
Watson & Anor v Lee & Anor (1979) 26 ALR 461
Workplace Ombudsman v Securit-E Holdings Pty Ltd & Ors [2009] FMCA 700
Applicant: FAIR WORK OMBUDSMAN
First Respondent: DAMIEN PETER LOVE
Second Respondent: TAMMY LEIGH LOVE
File Number: SYG 2808 of 2009
Judgment of: Lloyd-Jones FM
Hearing date: 29 June 2010
Delivered at: Sydney
Delivered on: 31 August 2011

REPRESENTATION

Counsel for the Applicant: J. Mattson
Solicitors for the Applicant: Bartier Perry
Counsel for the Respondent: L. Wilson
Solicitors for the Respondent:

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Details
AGLC
Fair Work Ombudsman v Love [2011] FMCA 671
Case
[2011] FMCA 671
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman brought an action against two respondents in the Federal Circuit Court, alleging that they had contravened s.346ZD of the Workplace Relations Act 1966. This section pertains to the provision of false or misleading information to the Fair Work Ombudsman, a statutory officeholder responsible for enforcing workplace laws. The court was tasked with determining whether the respondents were liable for the alleged breach and, if so, what penalties should be imposed.

The primary legal issue before the court was whether the respondents had intentionally provided false or misleading information to the Fair Work Ombudsman. The court needed to examine the evidence presented, including witness testimonies and documents, to ascertain the truth of the matter. Additionally, the court had to decide the appropriate penalties for each respondent if they were found to have contravened the statute.

The court found that both respondents had indeed provided false or misleading information to the Fair Work Ombudsman, thereby contravening s.346ZD of the Workplace Relations Act 1966. The court concluded that the First Respondent's actions were more egregious, given the extent and nature of the misleading information provided, and thus imposed a penalty of $6,000.00. The Second Respondent was found to have played a lesser role, and a penalty of $1,000.00 was deemed appropriate. Both penalties were to be paid to the Commonwealth within 60 days of the judgment.

The court's orders were that the First Respondent pay a penalty of $6,000.00, the Second Respondent pay a penalty of $1,000.00, and that both penalties be paid within 60 days. No order as to costs was made.

Orders

Orders of the court

(1) Pursuant to s.719(1)(a) of the Workplace Relations Act 1966 the First Respondent pay a penalty of $6,000.00 for his involvement in the breach of s.346ZD of the Workplace Relations Act 1966.

(2) Pursuant to s.719(1)(a) of the Workplace Relations Act 1966 the Second Respondent pay a penalty of $1,000.00 for her involvement in the breach of s.346ZD of the Workplace Relations Act 1966.

(3) In relation to orders 1 and 2, penalties are to be paid to the Commonwealth of Australia within 60 days.

(4) No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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